Saturday, 30 July 2011

9373

Comments on CRB checks.

CRB checks are the result of a long chain of events linked to a response to high profile cases of child sexual abuse and murder. Clearly it is important to protect children from such events and the CRB can be perceived to be doing this effectively. I would strongly dispute this claim and in what follows i will argue that this is ill-conceived.

Two phrases often used in connection with the CRB, along with many other controversial measures, are “If it saves one child” followed by something like “it is justified”, and “if you have nothing to hide, you have nothing to fear”.

The first of these is a non-sequitur. It hypothesises the alternatives of inaction causing horrible suffering and death to a single victim and action preventing that death and suffering. However, this ignores the bigger picture of the negative consequences of such action. The presumption is that such negative consequences cannot outweigh the suffering and death which, for the sake of argument, i will say are inevitable if the action is not taken. There is another possibility though: that the action taken will cause more evil than inaction, even weighed against that likelihood. In other words, let us assume that it is absolutely certain that at least one child will suffer horribly and die as a direct result of that action not being taken. It is not the case that any other situation is better than that. This is a grim fact, but it is true. For instance, the Rwandan genocide was worse than that. African famines are worse. Millions of children dying in pain of cancer is a worse outcome. That last possibility is particularly relevant. Extreme cases make bad law though.

The second claim, “if you have nothing to hide, you have nothing to fear” makes two unwarranted assumptions. It assumes a perfectly functioning system. We know the CRB check system is not perfect because a number of people have gone through it with an unblemished record and gone on to harm children. It’s also a common argument against the death penalty. A pardon is of no benefit to an innocent person wrongly convicted and executed. In the event of a mistake being made in a CRB check, there may have been damage to a reputation and a person’s career simply because they have been unable to keep in practice at their profession or work for an employer who recognises their potential and is able to promote them. This is not simply a problem for that person, but for their passengers, customers, clients, pupils, students or patients. Suppose that individual would otherwise have become an effective oncologist who was able to treat childhood leukaemia. In the meantime, one child is saved from dying horribly. Another consequence of the check is that an innocent medical student never became a surgeon and thousands of children died horribly anyway. Compensation cannot address this problem and the potential surgeon’s wellbeing is not even an issue. Suppose a teacher failed a CRB check who would have been particularly inspiring to the pupil who went on to become that surgeon. The CRB system is known not to be perfect. It produces both false positives and false negatives. This makes it a hazard to the good of society in numerous unknown ways. Talents and skills would be lost to society or never develop in the first place.

The other assumption is that the values of the authority imposing the check are equal or superior to those of the person who believes they have something to hide. This doesn’t follow either. If someone hides their ethnic origin in a markedly racist society, they most certainly have something to fear from that being revealed. A whistleblower would also have something to fear. There are countless examples like this. In the Orkney child abuse scandal, Quakers were accused. They had something to fear but nothing to hide.

Turning to more detailed criticism of the CRB system, my major objections to their existence:

1. Mission creep: the initial remit of the CRB can expand in the absence of legislation enabling that, or its remit can be extended as a result of ill-considered legislation. Organisations have to justify their own existence and tend to manufacture work for themselves.

2. If the protection of children and vulnerable adults is a major priority, it is worth doing the checks via the experts in this area, the police. Whereas this could mean that other crime increases, the priority it has been given would imply that this is an acceptable price to pay. If not, why is it being done at all?

3. Volunteers are discouraged. A complex, time-consuming expensive bureaucratic system for doing these checks discourages volunteers. This is directly harmful to society, costs public money because of the expensive results and denies many of the opportunity to gain experience and become of greater value to society.

4. It allows organisations to construct a spurious case that they have taken steps to minimise risks to children and vulnerable adults when they have in fact done no such thing.

5. It encourages a culture of distrust and vexatious litigation between the generations.

6. It is duplicated. Each role requires another check. This is akin to requiring a new driving test and licence for every vehicle bought, rented or used in the line of work. The potential for harm from reckless or malicious driving is in no way less serious than the potential for harm from child sexual abuse and murder. Similarly, a single passport is required for entry to many countries rather than a separate passport for each country, and there is ample potential for harm there in the form of organised crime and terrorism. These are again no less harmful than child sexual abuse and murder. If a single driving licence and a single passport is required, there can be no justification for multiple checks.

7. It lulls people into a false sense of security, including parents, responsible adults and the clients of the organisations concerned.

8. It is a tax on charity and goodwill. The money a charity could otherwise use to pursue its purpose is diverted to the CRB and their agents. If the individual bears the cost instead, it constitutes a barrier to the poor in volunteering.

9. The soft evidence is merely hearsay and is open to abuse.

10. It violates the principle of presumed innocence.

11. It impairs authentic relationships.

I am opposed to the very existence of the CRB and their agents. However, if such a process is indeed necessary, i would suggest the following:

Define vulnerable adults very narrowly if at all. For instance, it could mean adults who are on remand, homeless, severely mentally or physically disabled, diagnosable as seriously mentally ill, critically ill or the victims of violent crime or natural disasters or accidents, that is, the traumatised. This is just an example. It should not mean the likes of people who happen to be in receipt of any kind of medical treatment at all.

Define contact as involving being in near-constant close physical proximity or near-constant communication with children or vulnerable adults as defined above where a close relative or trusted adult friend of the individual is absent, and where consent has not been actively withdrawn.

Frequently review the organisation independently in an accountable way for mission creep.

Make the police responsible for carrying out the checks. If this creates excessive extra work to the detriment of the other duties of the police, assess the relative value of the tasks and prioritise accordingly.

Recognise that as both teachers and certain other professionals are in loco parentis with children, they are expected to behave in certain ways as a parent would towards their child. This would include providing medical treatment as a parent would, for instance inhalers, adrenalin injections, medication and the like. As part of this, teachers and other professionals should be expected to have the same level of competence as a parent of a child with that kind of health problem if they are likely to come into contact with such a child. However, they are expected to arrange to acquire the knowledge and skills necessary to meet these needs and failure to ensure that the child receives the appropriate treatment is likely to be seen as criminal negligence. Consent can be actively withdrawn by the parent or guardian or by a child above a certain age, but is otherwise assumed to be given tacitly, and the defence of the “reasonable man” is valid in this context for all parties involved.

In all things, presume innocence until guilt is demonstrated beyond any reasonable doubt.

Do not require one check per role but attach the check to the individual in a manner analogous to a driving licence or a passport. The checks must be transferable. Model the nature of the checks on those required for driving licences or passports.

Specifically legislate that adherence to CRB checks is not a defence in law against an accusation of negligence or dereliction of duty of care against an organisation, i.e. in no way can it be accepted as evidence that the organisation has complied with any legal duty towards children or vulnerable adults. The priority must be the safety of children or vulnerable adults rather than the avoidance of legal liability.

Fund the checks publically, not through the private sector or individuals. The police are funded by the public to prevent crime and uphold the law. There is no difference here, therefore these checks, if they have to happen, must also be publically funded. They must also be carried out on a non-profit basis and the wages of any employee whose main responsibility involves these checks must be capped.

Specifically rule out certain actions and events from constituting unacceptable contact between professionals and children or responsible adults, such as non-sexual, non-aggressive physical contact, being in sight of children and assume consent for photography unless it has been actively and explicitly withdrawn by parents or children.

I realise this is all very sketchy at the moment, but this is roughly what i mean. Rather than this last bit, i would prefer the CRB simply to be abolished without being replaced by anything.